England and Wales Care Standards Tribunal

XZ and YZ

v

OFSTED

[2008] 1210 EYSUS

[2008] 1211 EYSUS

Before: Mrs Meleri Tudur

Ms Michele Tynan

Mr Michael Jobbins

Heard in Manchester at the Immigration and Asylum Tribunal Office, Piccadilly Gardens, on 1 February 2008.

The Appellants who are mother and daughter were not represented, but were assisted by Z, the husband of XZ.

The Respondent was represented by Mr Simon Murray of Counsel, instructed by Ms Mona Fawaz of the Treasury Solicitor. Their witnesses were Mr Simon Hutchings and Mr George Plant of Ofsted.

Preliminary matters.

Mr Murray made an application for a Restricted Reporting Order under Regulation 18 of the Protection of Children and Care Standards Regulations to prevent the publication of the names of any children, to protect the identity of vulnerable persons and to protect the private lives of the Appellants.

The Tribunal allowed the application and ordered that the Restricted Reporting Order should extend to the publication of the decision in an anonymised form, other than the names of professional witnesses and representatives.

Background.

1. A statutory notice of suspension under the Child Minding and Day Care (Suspension) Regulations (England) 2003 ("the Regulations") was hand-delivered to the Appellants on the 3 January 2008.
2. On the 6 January 2008, the Appellants requested the Respondent in writing to remove the suspension.
3. The Respondent received the letter on the 9 January 2008 and on 10 January 2008, convened a review meeting to consider the request and the decision maker, Mr Simon Hutchings, Field Area Manager of Ofsted, concluded that if the Appellants were allowed to care for children there was reason to believe that a child or children would be at risk of harm and that the Police and Social Services required time to conduct an investigation into the allegations. The request was refused.
4. On the 10 January 2008, both Appellants were notified by letter of the refusal of the request to lift the suspension.

The Law

5. Regulation 3 of the Regulations provides that: "The Chief Inspector may..suspend the registration of any person acting as a child minder or providing day care if he has reasonable cause to believe that the continued provision of child minding or day care by that person exposes or may expose one or more children to whom it is or may be provided to the risk of harm and the purposes of the suspension is for one to both of the purposes set out in paragraph (2)".
6. Paragraph (2) provides that the purposes of the suspension are (a) to allow time for the circumstances giving rise to the Chief Inspector's belief to be investigated, or (b) to allow time for steps to be taken to reduce or eliminate the risk of harm.
7. The appropriate standard of proof was identified in Mrs LM v Ofsted [2003] 181 EYSUS. The Tribunal stated in that case that the question the Tribunal must ask itself is whether there is reasonable cause to believe that the continued provision of child minding may expose a child to risk of harm. The Tribunal concluded that "reasonable cause to believe" falls somewhere between the higher, balance of probability test and the lower test imposed by section 47 of the Children Act of "reasonable cause to suspect". The Tribunal agreed ".that the belief is to be judged by whether a reasonable person, assumed to know the law and possessed of the information, would believe that a child might be at risk."

Evidence

8. The Appellants, Mother and Daughter, who jointly child mind in S, appeal to the Tribunal against the Respondent's decision made on the 10 January 2008 to refuse to lift the suspension of both Appellants' registration pursuant to a decision made on the 2 January 2008.
9. XZ was registered as a childminder in 2001. Her daughter YZ was registered as a childminder in 2005. They were registered at the same address to child mind, together, up to 5 children under the age of 5 of whom four could be under the age of 4 and 1 under the age of 12 months.
10. On the 19 December 2007, Ofsted received a telephone call from a member of the public informing them of allegations that YZ had roughly handled a child on the 12 December 2007, by dragging her to her feet by the back of her top and on the 19 December 2007 that a child had been forced to stand facing a wall, had been told to sit under the table for an hour and had been force fed by pouring juice into the child's mouth by YZ for about two minutes. It was alleged that XZ had bullied the same child and had allowed YZ to do so.
11. On the 20 December 2007, Ofsted conducted a review meeting to consider the action to be taken in respect of the allegation. By then, they were aware that Social Services had convened a strategy meeting to meet on the 31 December 2007 pursuant to child protection procedures. The review meeting decided that they could not pre-empt the outcome of the strategy meeting and concluded that the appellants were unlikely to be child minding over the Christmas period. The review meeting decided to reconvene on the 2 January 2008 to consider the position in the light of the outcome of the strategy meeting. The meeting had before it information about five previous complaints made against the Appellants since registration.
12. On the 31 December 2007, the multi agency strategy meeting decided that the allegations were sufficiently serious for the Greater Manchester Police to instigate a criminal investigation. The meeting recommended that the registration of both Appellants should be suspended pending the outcome of the police investigation.
13. The Ofsted review meeting reconvened on the 2 January 2008 and considered their response to the allegations. It was decided that the Appellants' registration should be suspended for a period of 6 weeks. George Plant telephoned and spoke to YZ to arrange a meeting with her and her mother at 9.30am.
14. Mr Plant met with both appellants on the 3 January 2008 and explained the suspension to them. He had been advised by social services not to tell the appellants the detail of the allegations against them but referred them to a contact within social services. Mr Plant gave the documentation to the wrong appellants and omitted from YZ's documents information about her rights of appeal. At the hearing, he apologised for both of these errors and confirmed that despite the delay in forwarding the information both appeals had been lodged in time.
15. On the 6 January 2008, both Appellants wrote to the Respondent requesting that the suspension should be lifted.
16. The review meeting convened on the 10 January 2008 to consider the request to lift the suspension. Information received informed then that the Police investigation had started and that the complainant was due to be interviewed on the 16 January 2008. In those circumstances, it was concluded that there were reasonable grounds for belief that if the suspension was lifted, them there was a risk of harm to a child or children and that it was reasonable to allow the investigation to be concluded. The request was refused.
17. A letter to the Appellants dated 10 January 2008, notified them that the request had been refused. Both Appellants lodged an appeal to the Tribunal.
18. On the 22 January 2008, the President of the Tribunal issued directions for an oral hearing and for lodging of statements and further evidence.
19. Following the suspension, two further complaints had been made about the care offered by the Appellants to children in their care.

Evidence at the hearing.

20. Mr Simon Hutchings, Field Officer for Ofsted, gave evidence about his involvement in the case and the reasons why the review meeting had decided to convene after the strategy meeting. He confirmed that he based his assumptions about the level of work over the Christmas period on his knowledge of working practice among child minders and had taken into consideration the fact that there were two weekends and two days of bank holidays during the intervening period.
21. Mr Hutchings stated that he had been aware of the previous complaints against the Appellants during both meetings but confirmed in oral evidence that he would have made the decision to suspend their registration even if the former complaints had not been made. He also confirmed that Ofsted had taken action following the previous complaints but had not found any breaches of the Regulations although they had ordered two actions as a result of the final complaint against YZ.
22. Mr George Plant, Inspection Team Manager for Ofsted, confirmed that he had been present at the strategy meeting and that social services had been aware of the old complaints and had expressed concern about them. He also gave evidence that social services had mentioned further complaints made by other childminders in the area about the treatment of children by the Appellants and had expressed concerns of a more general nature about the Appellants.
23. Both Appellants declined the opportunity to give further oral evidence at the hearing, and we read letters and statements from them both submitted in the course of the appeal.
24. XZ in her statement to the Tribunal explained why she would never allow YZ to lift a child by its clothing or arms. She also referred to the allegations on the 12 and 19 December 2007 and denied the allegations.
25. In her statement, YZ described her recollections of the incidents on the 12 and 19 December 2007, offering her explanation and denying the allegations made against her.
26. We read a short statement in support of the Appellants from Ms J M dated 24 January 2008.
27. The Appellants produced copies of written testimonials received from parents of children minded by them.
28. Z expressed the Appellants' surprise at the evidence given by Mr Plant and explained that the Appellants had been unaware of the allegations made by other childminders until the day of the hearing. He explained that childminders were not a united group and that there might be jealousies and ill-will between them. He described in detail the distress and unhappiness caused to the family by the current situation, particularly by the fact that the Appellants could not discover any information about the allegations leading to the suspension. XZ had found it particularly distressing to try to complete the appeal forms without knowing what evidence might be necessary to refute unspecified allegations.
29. Z expressed his disbelief at the delay between the allegation being made and the suspension being implemented. He suggested that if the allegations were sufficiently serious to require suspension on the 3 January 2008, then they were sufficiently serious for action to be taken immediately and not to allow the Appellants to work a full six days over the Christmas period.
30. Following the initial allegations and after the suspension decision and refusal to raise the suspension, Mr Hutchings gave evidence that two further allegations had been made against YZ from different sources to the original allegations.
31. By the time of the hearing, the Police had not concluded their enquiries.
32. In the course of the appeal, reference was made to allegations and complaints investigated during the period 2005 – 2006 against YZ. Some of the investigations had not led to any action being taken by the Respondent but two actions had been raised in 2006.

Tribunal's conclusions

33. We have adopted the position taken by the Tribunal in Mrs LM v Ofsted [2003]181.EY-SUS and in subsequent cases that the standard should be judged by whether a reasonable person, assumed to know the law and possessed of the information would believe that a child would be at risk if the child minding continued.
34. We considered the facts as they were at the date of the hearing: allegations had been made about both the Appellants which had been sufficient to trigger a criminal investigation by the Police.
35. YZ and XZ's own evidence in response to the allegations were sufficient to indicate that there were grounds for further investigations. The allegations referred not to one but to four different incidents on two different dates. The evidence showed that the complainant had publicly confronted YZ with some of the allegations at the time, so that YZ was able to identify the complainant and her allegations. She would have known the seriousness with which the complainant had viewed her conduct at the time.
36. On the basis of the evidence given as to the allegations made and the outcome of the strategy meeting, the fact that a criminal investigation had been instigated is sufficient to answer the first question in the affirmative. Although the decision was not based on the old complaints, the similarity between the current and past allegations, and the fact that the Respondent had seen fit to raise two actions on the previous complaint added weight to the concerns about the present situation.
37. We shared Z's concerns that there was a significant lapse of time from the 19^th December when the allegations were made to the 3 January 2008 to the suspension being imposed. We would agree with his interpretation that if the allegations were sufficiently serious to trigger a suspension on the 3 January 2008, then they should have been sufficiently serious to trigger action sooner.
38. The fact that the Respondent's action was delayed over the Christmas holiday period does not, however, mean that there are grounds for lifting the suspension. By the date of the hearings, additional allegations had been made and the investigations had not been concluded.
39. We are satisfied that the belief of risk of harm was and continues to be reasonable. It is also necessary to allow the Child Protection agencies to complete their investigations into the allegations.
40. We can understand the Appellant's distress and frustration at the lack of information available to them about the reasons for the suspension and note that the Tribunal suggested in the case of SB v Ofsted [2005]605.EY-SUS that the Respondent could write explaining the protocol of child protection procedures to childminders at the time of their suspension, so that they have an opportunity at least to understand the process.
41. Suspension is a short-term measure and not a final decision but is necessary to enable the appropriate investigations to be carried out. Such a step is entirely appropriate in this case and we dismiss the appeal. This is our unanimous decision.

Appeal dismissed.

Dated the 12^th day of February 2008

Meleri Tudur, Chair

Michael Jobbins

Michele Tynan